2019 QCCQ 7281, 2019 QCCQ 7281

R. c. Mars 2019 QCCQ 7281 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU “Criminal Division” No: 550-01-112463-197 550-01-112464-195 550-01-112465-192 DATE: October 10, 2019 ______________________________________________________________________ PRESENT: THE HONOURABLE ANOUK DESAULNIERS, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

Michael john mars Accused ______________________________________________________________________ RULING ON DEFENCE MOTION SEEKING THE EXCLUSION OF EVIDENCE (SS. 7, 8, 9 & 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ) (rendered orally on October 10, 2019) ______________________________________________________________________ [ 1 ] The accused, Michael John Mars, is charged with - Possessing a cross-bow while prohibited (2 counts) in file 550-01-112465-192; - Possessing crack-cocaine for the purpose of trafficking in file 550-01-112464- 195; and - Possessing a sum of money not exceeding $5,000 knowing that all or part of this money was derived from the commission of an offence, in file 112463-197 [ 2 ] The accused is presenting a motion seeking the exclusion of evidence under sections 7 , 8 , 9 and 24(2) of the Canadian Charter of Rights and Freedoms . [ 3 ] More specifically, the accused submits that he was arbitrarily detained and that the search of his car was illegal.

Analysis [ 4 ] On June 16, 2019, around 2:27 AM, Officers Dault and Guindon observed that the accused’s car was parked within one meter of a fire hydrant, which is prohibited under the Highway Safety Code . [ 5 ] Officer Dault testified that he approached the driver of the car because it was parked illegally and because he wanted to check the driver’s condition. [ 6 ] At the outset of the voir-dire, the defence agreed to withdraw paragraph 17.2 from its motion.

Initially, the motion submitted that the accused did not commit any offence under the Highway Safety Code by parking in front of a fire hydrant with the car’s engine running. But the offence provided under

section 386 of the Highway Safety Code is committed when a person immobilizes their car within a distance of less than 3 meters from a fire hydrant. It is thus irrelevant whether or not the car’s engine is turned off. [ 7 ] The defence now concedes that the police were justified, initially, in intercepting the accused in his car pursuant to

section 386 of the Highway Safety Code .

[ 8 ] During his initial contact with the accused, while he was standing in front of the driver’s window, Officer Dault observed that the accused, who was sitting at the wheel, avoided eye contact with him. The accused mentioned that he had just dropped off his sister. The police officer knew this to be false, because he had observed the same car at that same address 20 minutes earlier. [ 9 ] Officer Dault asked the accused to look at him and, using his flashlight, he observed that the accused’s eyes were glassy. [ 10 ] Officer Dault asked the accused to step out of the car.

Once the accused was outside, the officer asked him to blow on his glove to check whether his breath smelled of alcohol. [ 11 ] The defence submits that this was illegal because, it argues, the officer was not entitled to require the driver to exit his vehicle and, furthermore, the officer was not legally entitled to ask the driver to blow on his glove. [ 12 ] The Court respectfully disagrees. [ 13 ] First, it is settled law that

section 636 of the Highway Safety Code allows a peace officer to check the sobriety of a driver in addition to requiring him or her to produce their driver’s licence, registration and proof of insurance. [1] [ 14 ] It is also settled law that a peace officer’s power to test the sobriety of a driver includes the power to require him or her to blow into the face or the glove of the officer to check for alcohol. [2] [ 15 ] Also, such a screening measure is minimally intrusive and promptly performed at the roadside.

It is therefore reasonable. [3] [ 16 ] While Officer Dault was speaking to the driver, he used his flashlight to light the inside of the vehicle. He testified that he did so for his own safety, to keep an eye on whatever the driver might grab with his hands. He also visually inspected the vehicle, in case he saw weapons or drugs. [ 17 ] It is settled law that the expectation of privacy associated with a motor vehicle is lower than that in one’s home. In R. v.

Wise , the Supreme Court of Canada stated the following: “Society then requires and expects protection from drunken drivers, speeding drivers and dangerous drivers. A reasonable level of surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection.

All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one's home or office.” [4] [ 18 ] With respect to the visual inspection of the inside of a vehicle with the aid of a flashlight, the Supreme Court of Canada unanimously stated the following in R. v. Mellenthin : “There can be no quarrel with the visual inspection of the car by police officers.

At night the inspection can only be carried out with the aid of a flashlight and it is necessarily incidental to a check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops.

There have been more than enough incidents of violence to police officers when vehicles have been stopped. (…) Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can be utilized at any time as a necessary incident to the check stop routine.” [5] [ 19 ] These comments, made in the context of a random roadside check stop , also apply to situations where a vehicle is legally intercepted pursuant to the Highway Safety Code , such as the case at bar. [ 20 ] Officer Dault testified that when he asked the accused to step out of his car, the accused started moving his hands around frantically, as if he was trying to pick up many things around him.

According to Officer Dault, he notice at that time, in the cup holder, a small piece of plastic bag rolled up into a ball and tied with a knot. The officer had seen on at least 10 prior occasions such an object while on duty, and he knew from experience that this is a widely used method of transporting cocaine. [ 21 ] According to Officer Dault, as soon as the accused had exited the car, he informed his partner that he had observed drugs inside the cup holder, by referring to the police code “28”. Officer Guindon immediately proceeded to open the car door and seize the drugs.

As for Officer Dault, he continued investigating the accused’s sobriety by observing how he walked to the police cruiser. He did not notice any sign of impairment. Officer Dault then asked the accused to blow into his glove, to check for the smell of alcohol, which was negative. [ 22 ] Officer Dault, then satisfied with the accused’s sobriety, proceeded to arrest him for possession of cocaine. [ 23 ] Officer Guindon’s testimony was consistent with that of his partner. He mentioned that when the accused’s car was intercepted, he walked up to the front passenger window.

He, too, used his flashlight to light inside the car and watch any movement from the accused. He did not notice the drugs at the time. [ 24 ] When Officer Dault asked the accused to exit the car for the purpose of checking his sobriety, Officer Guindon walked over to the driver side. Immediately upon his arrival, he was informed by Officer Dault that he had observed drugs, referred to by code name “28”, in the cup holder. [ 25 ] Officer Guidon again used his flashlight to light the inside of the car and immediately saw a small piece of plastic bag tied with a knot to form a ball in the cup holder.

From his police experience, he knew that this type of object contained crack or cocaine. He opened the door, which the accused had closed when he exited the car, and seized the piece of plastic bag. He immediately told his partner to arrest the accused. [ 26 ] It is not at issue that, if Officer Dault did see, inside the cup holder, the small piece of plastic, which he knew from experience to usually contain drugs, this observation was sufficient to provide the police with reasonable and probable grounds to seize the object

and arrest the accused for possessing drugs. Officer Dault was not questioned on this matter nor was it raised in counsel’s closing arguments. [ 27 ] Rather, the defence submits that Officer Dault did not see the small ball of drugs inside the cup holder and that Officer Guindon searched the car on a fishing expedition. [ 28 ] The Court respectfully disagrees. Officer Dault provided credible and reliable testimony that he noticed the small piece of plastic bag when the accused started moving his hands around frantically when asked to step out of the car.

At this time, the police officer was performing a visual inspection of the car with his flashlight, specifically looking for drugs or weapons.

The same cannot be said of Officer Guindon, which can explain why he did not notice the drugs. [ 29 ] It is easy to accept that, standing beside the car and bending to bring his face closer to the driver’s window, Officer Dault was well positioned to look downward and observe everything in the car, including the content of the cup holder. [ 30 ] The photograph of the inside of the car filed by defence under D-1 is of such poor quality that it offers no probative value whatsoever.

This photograph was taken during a bright sunny day and there are so many reflections in the window from the outside environment, such as trees, the neighbouring car and a fence, that it is impossible to distinguish anything inside the car beside the steering wheel and part of the driver seat. [ 31 ] The accused did not contest that there was indeed a small bag of drugs inside his cup holder.

Also, the events that he and his witness, Bobby Sampson, describe are essentially the same, in their sequence, as that described by the two police officers. [ 32 ] The difference between Crown and defence positions lies, rather, on whether Officer Dault did see the drugs in the cup holder and whether the police officer acted legally in asking the accused to step out of the car and in searching the car. As I have explained, I conclude that Officer Dault did have the authority to ask the accused to exit the car as part of his power to check driver sobriety.

I also conclude that he did observe the drugs in the cup holder and informed his partner of this. [ 33 ] I should also mention that the Court does not grant much weight to the testimony of Mr.

Sampson, who testified as if he was reciting a lesson learned rather than describing events he had truly witnessed, and who refused to answer many questions during his cross-examination. [ 34 ] Because Officer Dault noticed the drugs during his visual inspection of the car, which was lawfully performed, Officer Guindon was entitled to open the car door and proceed to seize this object. [ 35 ] Also, it is settled law that Officer Guindon was lawfully authorized to search the cockpit of the car incidental to the accused’s arrest for possession of drugs. In R. v.

Caslake , the Supreme Court of Canada ruled that a police search of a car for the purpose of finding evidence is well within the scope of the search incident to arrest power. [6] Thus, Officer Guindon did lawfully search the glove compartment as well as the middle compartment between the front seats of the car. [ 36 ] As for the two bows located in the car trunk, the evidence clearly shows that the trunk was accidently opened by the accused when fumbling with his keys and cell phone while resisting his arrest.

Officer Guindon then observed the bows inside the trunk and, pursuant to the plain view common law principle, he was then authorized to seize them. Conclusion [ 37 ] To summarize, the Court comes to the following conclusions: 1. The police were authorized to intercept the motor vehicle, which was illegally immobilized in front of a fire hydrant, contrary to

section 386 of the Highway Safety Code ; 2. The police were also authorized to check the driver’s sobriety pursuant to

section 636 of the Highway Safety Code ; 3. As part of the sobriety test, Officer Dault was authorized to require the accused to step out of his vehicle and, subsequently, blow on his glove to check for the smell of alcohol; 4. The defence is correct in saying that the drugs were not found pursuant to the common law principle of plain view because these drugs were not found inadvertently by the police. Instead, Officer Dault testified that he specifically looked for drugs inside the vehicle with his flashlight; 5.

However, while the seizure was not authorized under the plain view principle, it was performed legally because it flowed from the visual inspection of the car with the aid of a flashlight, which was performed incidental to the interception of the vehicle, in accordance with the Supreme Court of Canada’s decision in Mellethin ; 6. The accused was lawfully put under arrest for possession of drugs; 7. Officer Guindon had the power, incident to this arrest, to search the cockpit of the car for evidence; 8. The trunk of the car was opened by accident by the accused.

The crossbows inside the trunk then came into view and Officer Guindon had the power to seize them pursuant to the common law principle of plain view. FOR THESE REASONS, THE COURT DISMISSES the defence motion seeking the exclusion of evidence.

__________________________________ Anouk Desaulniers, J.C.Q. Mtre Anne-Frederique CoulombeFor the Crown Mtre Annabelle RouthierFor the accused Date of hearing: September 18-19, 2019, October 10, 2019 [1] R. v. Tsakalis, 2015 QCCS 2510 at paragraph 20. [2] R. v. Weintz, 2008 BCCA 233, leave to appeal dismissed by the Supreme Court of Canada at (SCC), 2008CanLii59063; R. v. Rule 2017 MBCA 86; R. v. Roberts, 2018 ONCA 411 at paragraph 83; R. c. Lamarre, 2015 QCCQ 11236 atparagraph 25 ; and R. c. Babungi Bakuteka, 2017 QCCQ 14396 at paragraphs 43 to 52. [3] R. v. Rule, ibid.